MOHAMED KHANI ROWTHER Vs. THAIVANA AMMAL
LAWS(KER)-1962-9-13
HIGH COURT OF KERALA
Decided on September 17,1962

MOHAMED KHANI ROWTHER Appellant
VERSUS
THAIVANA AMMAL Respondents

JUDGEMENT

- (1.) IN my view the, "such other period as may be allowed by the Rent Control Court" of S. 11 (2) (b) of the Kerala Buildings (Lease and Rent Control) Act XVI of 1959 is a period to be allowed by the order referred to immediately before those words (namely, the order of eviction), in lieu of the one month's period allowed by the section itself, and I think there is here a "different intention" excluding the operation of S. 13 of the INterpretation and General Clauses Act, 1125 (S. 14 of the General Clauses act, 1897 ). The use of the expression, "other period" instead of, "further period" or words to that effect is significant, for, it contemplates a substitution of the time allowed by the section and not an enlargement or other modification. And, if the time allowed by the section is to be displaced, that must be done when the order for eviction is made; else the time allowed by the section comes into play. A reading of S. 14 of the Act makes the position clear. An order under S. 11 shall be executed by the Munsiff after the expiry of the time allowed therein. If nothing is said in the order then the one month's time allowed by S. 11 (2) (b)automatically attaches to the order. If any other period is to be regarded as the time allowed by the order then the order itself must state the period that cannot be done by a subsequent order. If the Rent Control Court were to prescribe a different period by a subsequent order that would not be a period allowed by the order made under S. 11; and, under the terms of S. 14 the Munsiff would be bound to execute the order made under S. 11 on the expiry of the time allowed therein. There is no provision for the stay of execution pending an application for time for making a deposit under S. 11 (2) (b), and, consequent to the deposit, for an order vacating the order of eviction. Therefore, as I have said, the Munsiff would be bound to execute the order for eviction and I do not think S. 11 (2) (b) contemplates relief against forfeiture and restitution after the order for eviction has actually been executed.
(2.) READING S. 11 (2) (b) and S. 14 together, it seems to me that what the statute contemplates is that the order of eviction should itself allow a time for eviction , on the expiry of which alone the order can be executed. That would be the one month's period allowed by S. 11 (2) (b) itself "or such other period as may be allowed by the Rent Control Court " under that section. It follows that " the such other period" must be prescribed by the order of eviction itself and not by any other order. If this were not so it would mean that long after an order for eviction has been made, even long after it has been executed, the Rent Control Court could give time for depositing the arrears of rent (not even perhaps up to date but only up to the date of the application for eviction) and, on such deposit would be bound to vacate the order of eviction. This would be most unreasonable and I should think that if S. 11 (2) (b) were really intended to empower the Rent Control court to extend or enlarge (from time to time, as and when occasion arose) the one month's period allowed therein, it would have been very differently worded (c. f. S. 148 of the Civil Procedure Code & the proviso to S. 8 (3) of Kerala act XXXI 58 with regard to the latter I might say that a Division Bench of this court has held in 1960 KLT. 1069 that no extension can be granted after the expiry of the time allowed by the statute ). The order of eviction in this case was made on 2112 1957 under S. 7 (2) of Madras Act XXV of 1949, and, by reason of the combined operation of S. 30 of Kerala Ordinance III of 1959 which repealed that Act and S. 36 of Kerala Act XVI of 1959 which repealed the Ordinance, must be regarded as an order made by the Rent Control Court under S. 11 (2) of Kerala Act XVI of 1959, although this would have been clearer had S. 36 (2) of Kerala Act XVI of 1959 included within the scope of its fiction not merely things done in exercise of the powers conferred by or under the Ordinance but also things deemed to have been so done since the fiction created by S. 30 of the Ordinance died with it. The Madras Act contained no provision similar to S. 11 (2) (b) of Kerala Act XVI 1959 there relief against forfeiture can be given as under S. 114 of the transfer of Property Act only before an order of eviction is made and naturally the order of eviction allowed no time for the deposit of the arrears of rent for relief against forfeiture. The present order vacating the order of eviction was made by the Rent Control Court two years later on 23121959, on an application made by the tenant on 10 71959, after the application had been repeatedly adjourned for the deposit of the arrears. The Rent Control Court purported to do so under S. 11 (2) (b) of Kerala Act XVI of 1959 under which provision the application was professedly made. It follows from what I have already said that its action is not authorised by the section and was without jurisdiction. The District Court was therefore right in setting aside the order of the Rent Control Court in exercise of its powers of revision under S. 20 of Kerala Act XVI of 1959, and this petition under Art. 226 and 227 of the Constitution against the order of the District Court must fail. My attention has been drawn to S. 23 (1) of Kerala Act xvi of 1959 which has the effect of attracting S. 148 of the Civil Procedure code and it is said that this empowers the Rent Control Court to act as it did. But S. 148, Civil Procedure code applies only to acts prescribed or allowed by the Code whereas the deposit for which time was allowed by the Rent Control. Court is an act prescribed or allowed not by the Code but by Kerala Act XVI of 1959. To say that S. 148 of the code must be adapted by substituting the words "kerala Act XVI of 1959" for the words "the Code" appearing in that section would be to rewrite S. 23 of Kerala Act XVI of 1959.
(3.) EVEN if the construction placed by me on S. 11 (2) (b)and S. 23 (1) of Kerala Act XVI of 1959 be wrong I do not think that the Rent control Court should have vacated the order of eviction on a deposit made two years after the order when the statute itself says that one month is the normal time. That the order of eviction was unsuccessfully taken in appeal and revision and that the revision petition was dismissed only on 12-6-1959 seems to me irrelevant since S. 11 (2) (b) expressly states that the deposit is to be made within one month of the date of the order of the Rent Control Court and gives no scope for the argument that the date of the dismissal of the revision petition is the material date. If a tenant pursues an appeal or a revision without seeking relief under S. 11 (2) (b), he takes the risk of the appeal or revision being decided against him and cannot thereafter seek relief under S. 11 (2) (b) after the time for that has elapsed. In any view of the matter I do not think that the order of the District Court has caused such manifest injustice as to persuade me to interfere under Art. 226 or 227 of the Constitution.;


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